Can I Refuse to Provide a Breath Sample in Ocean & Monmouth County?

Refusing a Breath Sample is a Criminal Offense

Anyone pulled over under a reasonable suspicion of driving under the influence of drugs or alcohol on a New Jersey road is deemed to have provided consent to the taking of samples of his or her breath. While the State cannot force you to provide a breath sample, refusing to do so is a distinct offense under N.J.S.A. 39:4-50.2 that carries its own penalties. These penalties can be quite severe, and in fact the same incident can lead to convictions for both DUI or DWI and refusing to provide a breath sample.

Advancements in the Breathalyzer

Today, law enforcement officials in New Jersey have replaced the “breathalyzer” of years past with the Draeger Alcotest® 7110 MKIII-C. This device measures the chemical content of your breath in order to determine whether your Blood Alcohol Content (BAC) level is above the legal limit of 0.08%. If you are pulled over under a suspicion of driving under the influence, the arresting officer is required to observe you for at least 20 minutes before explaining your two options: submitting to the Alcotest® or refusing to do so. Agreeing to take the test and blowing above the legal limit may result in a conviction with a range of potential penalties depending on your BAC level and whether or not you are a repeat offender. For instance, first-time offenders that record a BAC between 0.08% and 0.10% face a 3 month license suspension, a $250-$400 fine, 12-48 hours at an intoxicated driver resource center (IDRC), and a maximum of 30 days in prison.

On the other hand, the State cannot force you to provide a breath sample against your will and you may elect to refuse it. Before doing so, however, the arresting officer is required to read you a standard statement explaining that a refusal to take the test is a violation of the law with specific penalties. The most straightforward way to reject the test is by simply saying “no” or not responding to the officer when he asks you whether you consent to the test, however a refusal may also be implied on the basis of uncooperative behavior such as not blowing hard enough into the machine. If you are convicted of refusing to provide a sample and it is your first offense, you face an automatic license suspension for a minimum of 7 months and a maximum of 1 year, a minimum of 12 hours at an IDRC, a fine between the amounts of $300 and $500, and the required installation of an ignition interlock device in your vehicle. This device forces you to submit a breath sample before starting your vehicle and at periodic intervals while it is in operation. Because this device must be used for 6 to 12 months after your license has been reinstated, it is possible that you will still be dealing with the consequences of refusing to provide a breath sample two years after your conviction. A second conviction for this offense carries a $500-$1,000 fine and a 2 year suspension of driving privileges, and a third conviction results in a $,1000 fine and 10 year license suspension.

The State’s Burden of Proof is Not Very Heavy

Finally, the State does not have a difficult burden in order to sustain a conviction for refusing to provide a breath sample under N.J.S.A. 39:4-50.2. It merely has to prove that you were driving on a New Jersey road, that there was probable cause to believe that you were intoxicated, and that you refused to provide a breath sample. Furthermore, refusing to provide a breath sample does not immunize you from being convicted of DUI or DWI; you may still be convicted of these offenses as long as the State can produce sufficient evidence to show that you were under the influence of drugs and unable to safely operate a motor vehicle. For instance if they can prove that your vehicle was swerving and that you exhibited slurred speech and the odor of alcohol on your breath, it is possible to be convicted for DUI or DWI without ever taking the Alcotest®. In this case it is possible for the same incident to lead to convictions for both DUI or DWI and for refusing to provide a sample.

Carmine Villani, Esq. is Your Drunk Driving Lawyer

If you have been charged with a DWI or DUI you need to call an experienced New Jersey criminal defense attorney to protect your rights. Partner, Carmine R. Villani, Esq. has a wealth of experience in New Jersey criminal defense having served as municipal prosecutor and municipal public defender in numerous municipalities in Ocean County and Monmouth County throughout his 20+ year legal career. Contact the experienced NJ criminal defense attorneys of Villani & DeLuca, P.C. for a free initial consultation. Call 732-965-3350 today!

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